In a ruling that anticipates how the government will ignore torture as it tries alleged detainees in civilian court, Judge Lewis Kaplan rejected Ahmed Khalfan Ghailani’s efforts to get his indictment for contributing to the 1998 embassy bombings dismissed because he was tortured while in US custody.

As Kaplan argues, Ghailani could only use the Due Process Clause to dismiss evidence collected as a result of his torture.

The Due Process Clause, so far as is relevant here, protects against deprivations of liberty absent due process of law. The deprivation of liberty that Ghailani claims may occur if this case goes forward is his imprisonment in the event of conviction. In seeking dismissal of the indictment, however, he does not deny that he is being afforded every protection guaranteed to all in the defense of criminal prosecutions. Rather, Ghailani in effect argues that the case should be dismissed to punish the government for its mistreatment of him before he was presented in this Court to face the pending indictment.

For a due process violation to result in consequences adverse to the government in a criminal case – for example, the suppression of evidence or the dismissal of an indictment – there must be a causal connection between the violation and the deprivation of the defendant’s life or liberty threatened by the prosecution. That is to say, relief against the government in a criminal case is appropriate if, and only if, a conviction otherwise would be a product of the government misconduct that violated the Due Process Clause. For only in such circumstances may it be said that the deprivation of life or liberty that follows from a criminal conviction flows from the denial of due process. This conclusion thus rests directly on the text of the Due Process Clause itself.

But since the government is trying Ghailani for his involvement in the 1998 bombings, rather than for any actions about which they asked him under torture, the alleged torture is irrelevant to this indictment (remember, Ghailani was picked up in 2004 in the pre-election scare about terror). So long as the government relies only on evidence untainted by the torture, Kaplan argues, then it is irrelevant to this trial.

Of course, the government did hedge, somewhat, about whether they were going to rely exclusively on untainted evidence.

The government has identified one possible exception: a percipient witness whose identity remains classified and whose testimony may constitute fruit derived from statements made by the defendant in response to interrogations while in CIA custody. The government maintains that there is no basis for suppressing this potential witness’s testimony, and the issue is sub judice before this Court.

But that’s not enough to get this indictment dismissed.

What’s perhaps most curious about the ruling is Kaplan’s claim–which he doesn’t elaborate–that Ghailani may have some remedies against his torturers.

If, as Ghailani claims, he was tortured in violation of the Due Process Clause, he may have remedies. For the reasons set forth above, however, those remedies do not include dismissal of the indictment.

The closest Kaplan comes to explaining what Ghailani’s remedies might be is to discuss, abstractly in the context of precedent, what such remedies might be, leaving aside the question of whether someone tortured under Cheney’s torture program actually has access to those remedies.

“[A defendant] is not himself a suppressible ‘fruit,’ and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct.”18 Rather, the proper remedy is money damages or criminal prosecution of the offending officers.19

Only, he doesn’t have access to those remedies, as the Jeppesen and Yoo suits make pretty clear.

I don’t know why those whiners are so worried about trying Khalid Sheikh Mohammed in civilian court.

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to “Judge Rules Torture Doesn’t Violate Due Process”

So if I understand the Judge’s ruling, by analogy it goes something like this:

1. Defendant Ghailani stole an apple.

2. The Crown’s Sheriffs captured and imprisoned defendant Ghailani whereby they used the Thumbscrew on him, they used the red-hot tongs of Persuasion on him, they placed him on the Rack, and used a multitude of other Royal Intruments of torture on his person.

3. The Crown now seeks to convict Defendant Ghailani for stealing the apple.

4. The Lord High Justice finds that the enhanced interrogation techniques used by the Crown and endured by Defendant Ghailani during his pre-trial imprisonment are of no consequence and therefore not relevant to further proceedings, and now he must face trial for stealing the apple for which if convicted the punishment is death.

I’m thinking this ruling is on solid ground and will be upheld. The issue of the defendant’s conduct is separate from the governments conduct. The judge leaves open as to if the government may use statements obtained under questioning (One presumes questioning=torture in this context) of a person who may be called as a witness.

Of course, there is no remedy for the governments conduct.

Boxturtle (Betting they’ll have a tough time using that tainted testimony)

I’m confused. I thought in bmaz’s post last year, Judge White’s ruling that Padilla’s civil suit against Yoo could go forward laid to rest the claim that ‘pretrial defendants do not have 8th amendment right against cruel and unusual punishment.’ That pre-convicted persons were entitled to at least as much deference as convicts [edited: entitled to better treatment than convicts] when it came to no cruel and unusual punishment.

Judge White eviscerated the inane argument that because Padilla was not convicted of anything at the time, he was not entitled to Eighth Amendment protections against cruel and unusual punishment. This argument, Scalia’s rambling to Lesley Stahl notwithstanding, has been flat out silly from the start, and many of the commenters here have pointed out the obvious arguments against it for some time now. That said, it is good to see it dispatched in writing by a Federal judge:

Yoo contends that because Padilla was not convicted of a criminal offense at the time of his military detention, the Eighth Amendment prohibition against cruel and unusual punishment does not apply to him. However, “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982). “[C]onstitutional questions regarding the conditions and circumstances of [the] confinement [of detained persons not convicted of a crime] are properly addressed under the due process clause of the Fourteenth Amendment, rather than the Eighth Amendment’s protection against cruel and unusual punishment.” City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983). However, “[i]n light of the Supreme Court’s observation that the due process rights of pretrial detainees are ‘at least as great as the Eighth Amendment protections available to a convicted prisoner,’ we have recognized that, even though the pretrial detainees’ rights arise under the Due Process Clause, the guarantees of the Eighth Amendment provide a minimum standard of care for determining their rights.” Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003) (internal citations omitted).

I agree with the Court’s substantive analysis of this case, except for its assertion that the Eighth Amendment’s prohibition against cruel and unusual punishment would not be violated by the State’s imposition of cruel and unusual punishment on a prisoner before he has been convicted of a crime. I adhere to my views that the statements in support of that assertion in Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), and Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), simply cannot be squared with the text or the purpose of the Eighth Amendment. See Ingraham, supra, 430 U.S., at 684-692, 97 S.Ct., at 1419-1423 (WHITE, J., dissenting).

Followed the link to the Kaplan ruling above. Noticed the name Osama is spelled “Usama.” I know that CIA uses UBL instead of OBL, so I was wondering if the government has standardized Osama’s name for government purposes, or whether the spelling changes depending on whom is informing the prosecutor.

Jeff White is a district court judge in NDCA; his decision in Padilla would only have real value in NDCA, maybe less so in the 9th, but not in SDNY where Ghailani is being tried. The other white you cite is Byron “Whizzer” White who sat on the Supreme Court.

The Sup.Ct. rule that Kaplan talks about, the Ker-Frisbie rule, dates back to 1886, though it has been cited approvingly since then.

Judge Kaplan finds a 1974 case, Toscanino, inapplicable and concludes that it may no longer be good law.

Toscanino was concerned with “denying the government the fruits of its exploitation of any deliberate and unnecessary lawlessness on its part.” To whatever extent it is authoritative, a subject discussed below, the case is limited to situations in which the alleged outrageous government conduct brought the defendant within the court’s jurisdiction, and thus was a but-for cause of any resulting conviction, and compromised the fairness and integrity of the criminal proceedings. There is no similar connection between Ghailani’s alleged mistreatment while in CIA custody and this prosecution. Hence, to whatever extent that Toscanino remains viable, it does not apply here.

Kaplan relies on Brown v. Doe, a 2nd Cir. case, for that conclusion. That case seems distinguishable. In it, the 2nd Cir. declined to dismiss a case against a defendant in a state criminal proceeding who alleged gross mistreatment and abuse by state law enforcement officers before his trial.

The circuit court concluded that while the due process clause was the correct basis for challenge, it declined to vacate the state court action on the grounds that the defendant could independently seek restitution from New York state for those crimes, if they occurred, and because the 2nd Cir. concluded that that defendant had been lawfully tried and convicted by the state of New York using untainted evidence. As EW quoted Judge Kaplan noted that the Sup.Ct. has said:

“[A defendant] is not himself a suppressible ‘fruit,’ and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct.” Rather, the proper remedy is money damages or criminal prosecution of the offending officers.

A distinction from Brown v. Doe and the Sup.Ct. cases Kaplan cites is that a citizen of New York’s right to seek retribution from New York state is qualitatively different than a foreign national’s right and practicable ability to seek restitution from the federal government for torture or serious pre-trial physical abuse. There is no such remedy. If there were, the government would refuse to cooperate or to deliver up witnesses and evidence on the grounds of state secrecy.

The actions of the federal government under both presidents Bush and Obama make clear that only by denying the government its day in court can the federal courts impose a penalty on that government severe enough to encourage it to rethink its reliance on torture and criminal mistreatment of prisoners. Until it does, its claims not to use evidence derived from such torture and mistreatment ought to be given little weight.

The full interim decision, available at EW’s link, is 11 pages. It is readable and safe, but not persuasive.

Going beyond it would have required a lot of thought and effort. It would mean re-asking the question whether dismissal was a valid remedy for grievous government misconduct where the defendant’s right to seek redress from a government that has criminally wronged him is impracticable because that government claims that it, its evidence and its witnesses are off limits from the court’s and the defendant’s reach.

Infinitely “expandable” in what it may swallow, yet righteously narrow in what it can allow itself to see.

There are no patterns which catch the eye of any judge, and, if some mote doth catch the lashes, the pupil dances right away … for each pristine and “separate” instance is a world, whole and inviolate unto itself, there is no “pattern” of governmental “abuse” or “dishonesty”, just a universe of separate and unrelated planets which have no apparent connection, even if they arose from the same cosmic dust, coalescing at the same time and in much the same way, … all orbiting a self-consciousness that prides itself on its apprehension of divine intent, the “unseen hand” of “justice” which willy nilly and ipso facto has, apriori, a “rightness” that its practitioners must never look directly upon as such vision would defile their own smug assurance of knowing all the magic words of power and of consequence and unnerve their arrogant assurance that their “interpretations” will become a part of that unquestionable whole.

Be there judges who can imagine that a fickle fate might drag them, indignant and abused, before a judging entity who is unimpressed with their heartless brilliance and unquestioning obeisance to careless, capricious rigidity and arbitrary torture of the souls of those who come before them?

Of a certainty, the practice of the law is the world’s second oldest profession.

None of this is any big surprise after watching the Padilla criminal case in Fla or the Saleh case in Chicago – both of which ignored torture detentions as having any affect on the trials. As I groused about back then and from time to time sense, the precedents were being laid and played well before the GITMO cases.

What I don’t think gets well addressed by any of these decisions is how a detainee can competently assist in their defense when they are in the hands of and detained by torturers who have no judicial constraint or restraint on that torture. So yeah – you have some evidence that was collected outside of the torture process or prior to the torture process. But whether you have that or not, for a trial to go forward the detainee has to be able to competently assist in their defense – how can they do that after they’ve been tortured and while they continue to be held by the torturers, none of whom are facing any consequences?

Every single abuse which this nation and its people, as well as people, human beings of other nations, of “significant” regions of the world suffer…every single outrage … we all experience, has lawyers at the heart of it …lawyers who will do the bidding of their masters, without question, without qualm … if some lawyer will not “play”, another steps, quickly, into the breech … and those lawyers who betray the rule of law, who betray humanity, who see the law as power and “justice” as a joke … those who grant themselves godlike grace, like tin-horn Caesars, to move above and beyond, as is their divine right and privilege, to toy with the lives of others … immune to consequence and to cost … those lawyers are rewarded … and none, among their more mundane colleagues, dare question or gainsay them.

These lawyers would make a tyrant of the law.

Their masters approve … for the purpose of the law, for the masters, is raw and brutal, however refined their manners and tasteful their sartorial elegance … it is unquestioned, and total, control.

And the law is merely their minion, however much its practitioners may pride themselves in “believing” otherwise …

The law is how those in power deal with those who have none. What it permits or disallows, who it protects or punishes, and how it does so, is a good measure of a country’s civilization, a good measure of how much it values opportunity and restraint versus unrestrained partisanship and greed.

The pendulum of late seems not to be swinging toward the right so much as swinging over the man and woman in the pit.

It’s like I’m living on the other side of the Iron Curtain. Almost as if we took the bad guys playbook, the one we were instructed would be used against us if we were caught, and now our own country is using it.

At times it’s too much for my rationalization processes, I want us wearing the White Hats again.

I cannot even imagine how our enemies will now treat our combatants that they take prisoner. I do not wish for my children nor grandchildren to serve our country in the armed forces any longer. (I was the the seventh continuous generation in my family to serve)

Hey DW. I looked, but don’t see anything from you directed to me after Comments # 58 and 59. Is that where you were directing me? There are many comments after those, but I saw none from you to me.

I have to say, I dearly love your prose (or should I say poetry?) and your philosophy, and pretty much agree with most of the individual thoughts you express, but I find myself more in agreement with the newcomer Mr. Sandman as to the big picture we are currently presented with.

This is why I don’t care about Kagan. If she was going to put a brake on this stuff she would not be nominated. The great political challenge of our time is bringing the president under the law. Until we do the law don’t mean shit.

Yes, Padilla came to mind for me, too. In particular, US District Court Judge Marcia Cooke’s ruling (made without a hearing) rejecting Padilla’s attorneys’ motion for dismissal of Padilla’s case due to “outrageous government conduct”.

I wrote back then (April 2007), that Cooke, “for the sake of this Order”, accepted Padilla’s charges of abuse as true:

But then, Judge Cooke denies that this abuse rises to sufficient outrageous conduct to throw the case out of court. Why? Because the government claims it will not use any evidence obtained from interrogations while Padilla was in the brig, i.e., from the time when he was tortured. Therefore, legally, Padilla supposedly has no “remedy” against the government….

In other words, the government can now arrest you, Mr. and Ms. U.S. Citizen, and torture you terribly, and the torture victim has no remedy as long as the government doesn’t use any evidence gathered during the torture period against you. (And by “torture” I mean any cruel, inhuman, or degrading treatment that “shocks the conscience” of any individual that suffers it, which is the current standard in U.S. law.)

(Actually I wrote “no remedy”, but there was a civil remedy to pursue, and of course, Mr. Padilla is doing just that.)

Here’s a link to Judge Cooke’s ruling (PDF), for those who may wish to bookmark it.

The other reason that silencing the Ghailani trial on the issue of his torture is so frustrating is that he was the one who fingered Yemeni Mohammed al-Hanashi, placing al-Hanashi in Afghanistan two or three years before he was ever there. Ghailani’s identification was a key component in the evidentiary case against al-Hanashi. Andy Worthington first discovered the story, and reports on it here.

What makes this more than another footnote is that Mohammed al-Hanashi died at Guantanamo in June 2009, a supposed suicide. His death is suspiciously similar to those of the three 2006 suicides exposed in Scott Horton’s now famous Harper’s article last January.

I started to put some dots together. I’ll note here that my FOIA for al-Hanashi’s autopsy report was denied. (Apparently, Naomi Wolf, also writing on the same story, had her request similarly turned down.)

In an article on the story last November, I made the connection to Ghailani:

Another odd coincidence surrounding his death concerns the transfer of Ahmed Khalfan Ghailani, a “high-value” detainee, who has been at Guantanamo since September 2006, to a New York federal court, only a week after al Hanashi was found not breathing in Guantanamo’s psych ward. Ghailani was facing charges concerning his alleged role in the 1998 bombings of US embassies in Tanzania and Kenya.

The link between Ghailani and al Hanashi is significant for one reason only: According to Andy Worthington, Ghailani, who was tortured in the CIA’s black prisons, fingered al Hanashi in 2005 as having been at “‘the al-Farouq camp [the main training camp for Arabs, associated in the years before 9/11 with Osama bin Laden] in 1998-99 prior to moving on to the front lines in Kabul.”

But according to al Hanashi and all other sources, al Hanashi came to Afghanistan only in early 2001. Hence, his possible testimony at a trial in New York City, establishing that Ghailani’s admissions were false, and likely coerced by torture, may have been a hindrance to a government bent on convicting the supposed bomber.

But, now we see that there never was a chance that the conditions of detention or the interrogations would be aired in court. (To earlofhuntingdon @9, Murray Froomkin had a different take on Toscanino, at least in the case of Padilla and re Cooke’s decision, back in ’07.)

As for al-Hanashi, officially the Pentagon says the investigation into his death isn’t closed. Last December, the Public Affairs office at Guantanamo told me that “all detainees are on line-of-sight” monitoring, “or at most a 3 minutes check on every detainee in the facility.” This doesn’t jibe with reports that al-Hanashi, like the 2006 supposed suicides, was a victim of self-asphyxiation. How did a weakened hunger striker, who was supposedly being forced fed in the psych unit, kill himself? According to a source, he was ill-treated in the Behavioral Health Unit, having become depressed and was denied use of a walker. A man who needed a walker to get around supposedly killed himself, while on “line-of-sight” observation?

I hope someone with time and resources is working on the al-Hanashi case, as Wolf seems to have let it go (for now), and I have little more new information to add (besides what I’ve written here).

I agree with Murray Froomkin’s take that Toscanino might well apply to facts such as the ones here, as Ghalaini pleaded, and his statement

that exclusion of evidence obtained by torture is a sufficient remedy for the most outrageous government conduct…is neither an obviously correct reading of that [Toscanino] decision nor an obviously correct decision on first principles….

It is a way to uphold the government’s claims and to kick the can farther down the road. Pity that it also kicks the defendant when he can least defend himself.

And he laid out all kinds of “realities” suggesting that the public, objecting to water boarding, does not appreciate the number of bullets that would have been pumped into these lucky terrorist if we had simply decided to kill them.

Rizzo, snappy, snazzy dresser that he is, is a pathetic excuse for a human being. That he had (and probably still has) “power” to avoid personal consequence, says EVERYTHING about the USA, today … about the political class (including the media) and the ruling classes in general.

America would choose to push the world into a Dark Age rather than change her destructive ways.

A pathetic excuse of a country …

It must reflect desperation or supreme arrogance.

(My guess is that WE are not done with arrogance … yet. The “other” … will follow.)

To go off on a tangent, there was recently a filing in the Al Haramain case (on 5/7)in response to Judge Walker’s demand that the plaintiffs justify their request for punitive damages. It is worth a read, and may well lead Walker to issue a ruling that lawless conduct by the government — and particularly by the Bush administration — will not go unpunished. So all is not lost (yet).

This is why I don’t care about Kagan. If she was going to put a brake on this stuff she would not be nominated. The great political challenge of our time is bringing the president under the law. Until we do the law don’t mean shit.

I think we could make a movement out of this one major point. And frankly Marcy’s comments the other night were some of the most clearly stated. Executive power grab. We have to bring this issue clearly into the discussion and then show how it is linked to all of our constitutional rights and also give examples of how this could be abused in the hands of say, “China”.

For me, this and the links with corporate power are the essence of the mountain we face. And this mountain is so big, I fear we can’t climb it. All of our civil rights are linked directly to the issue of executive power. (which right now is linked directly to corporate power) but could be linked to any power, at any given time. It is the lack of civil rights that GIVES it power.

Thanks for that. Needed the following paragraph explained in peasant terms. Sounds like they tied a knot that would be tough to untangle

“For a due process violation to result in consequences adverse to the government in a criminal case – for example, the suppression of evidence or the dismissal of an indictment – there must be a causal connection between the violation and the deprivation of the defendant’s life or liberty threatened by the prosecution. That is to say, relief against the government in a criminal case is appropriate if, and only if, a conviction otherwise would be a product of the government misconduct that violated the Due Process Clause. For only in such circumstances may it be said that the deprivation of life or liberty that follows from a criminal conviction flows from the denial of due process. This conclusion thus rests directly on the text of the Due Process Clause itself.”

The apple is stolen. They arrest the person that allegedly stole the apple. Torture to allegedly find out about who what how why when the apple was stolen. And while torturing you push to find out about others who have or might steal more apples? Then prosecute for the original apple stolen. Torture that took place becomes off limits during proceedings. Is that right?

Although I do see the difference between apple stealing and trying to kill innocent (or willfully ignorant) people.

Also see the difference between international treaties that define humane ways to get information and the torture used by the Bush administration to get twisted information.

I think “silencing” is a bit much and a wrongful characterization here. It may not be a ruling you like and, with a lot of guts, Kaplan could maybe have fashioned a different one, but quite frankly it is a rather pedestrian and supported legal decision.

Seems like the “remedy” would be a congress, and justice systems both nationally and internationally that actually stand by that “no one is above the law”. And that international treaties having to do with conduct during war actually have meaning.

“no one is above the law” What a joke. The majority of time these are hollow words.

Congress, the majority of American people, the MSM more than willing to go with the “turn the page, next chapter, move on, don’t be about retribution, vengeance” theme song being sung by the Obama administration and our Reps (Republicans, Democrats and Independents). Don’t think about the death and destruction in Iraq, Afghanistan, Pakistan that our military is responsible for. Don’t think about International treaties pissed on by the Bush administration. Don’t think about the torture done in your name. Just move on and be consumed with oil in the gulf, health care reform, jobs, Supreme Court nominees. Don’t think about the dead in Iraq that our nation caused and is choosing to roll right over.

Why is it that we know how many Jews (never hear the numbers of Poles, Gypsies etc who were murdered when that slaughter is consistently brought up in our MSM for decades) were brutally slaughtered during WWII?

Yet somehow in 2010 no one in our MSM or our government is able to count and focus on the numbers dead, injured and displaced in Iraq based on that “pack of (Bush administration) lies”

This is a trial level judge, not the President of the United States. A trial judge is supposed to apply the law as he sees it. Could Kaplan have taken it upon himself to do something unique and creative; I suppose, but that is not really his job. It is not an outlier decision, in fact it is exactly what you would expect. So accusing Kaplan of silencing simply seems overwrought; he wrote a supportable decision.

You are now going to call into question the ability of Article III judges in a broad swath with no evidence? How do you do that and what basis would there be for it? They are presumed sufficiently neutral unless proven otherwise.

I only ask because, for example, there are law schools which work to focus the application of the law in the US to benefit a conservative Christian perspective. Conservative Christians view the “brotherhood of Islam” as one of the greatest growing threats to the spread of Christianity.

The post title is a bit more than what the opinion actually says, which is simply that the court won’t dismiss the indictment.

I guess what I would like to see is some precedent holding that a court *should* dismiss an indictment on such facts. Toscanino seems to rely on facts where the illegal conduct was inseparable from the prosecution — illegal abduction creating jurisdiction, so that without the illegal act, there would be no prosecution. If the feds have no evidence vs. Ghailani beyond what they got via torture, the end result may be the same. Anyone got another cite besides Toscanino?

Ghailani should pursue a Bivens suit and test whether Congress really can deprive a torture victim of any remedy by blanket grants of immunity to government torturers.

I am accusing Kaplan, specifically, of nothing bmaz, I was asking YOU to consider that your acceptance of these things suggest an unavoidable, unintended, (and, perhaps an unperceived) prejudice.

I mean no offense.

I merely offered you an opportunity to ponder things somewhat differently, that you might better understand why some of the rest of us are not quite so sanguine as you, at times, “appear” to be, regarding where all “this” assault upon the rule of law will end up, and what it actually means to flesh and blood human beings.

I asked you to step outside of your legal philosophy and look at what is happening from the perspective of those who are not, as you are, so deeply immersed in a certain manner of looking at the world and human behavior.

This country, Iraq, the world have paid dearly for that Supreme Court selection of the Bush administration. Lost most of any respect that I had for the Supreme Court during that judicial partisan coup. Sickening

Jeff Kaye was making the point I believe that the whole procedure of being held in isolation and rendered in sensory deprivation to the court sessions is simply an evocation, if not continuation of the original torture.

Without venturing into Godwin territory lightly, let me observe that a key feature of German bureaucratic barbarism was the strict observance of the letter of the law, first by formal, utilitarian interpretation to its limit, then by changing the letter to accomodate the ambition. Call the first stage Bush, the second stage Obama, for short. To paraphrase John Brunner, yes, we might have tortured or murdered the subject, but by no means did we violate his rights!

At what point is a “mere judge” guilty of violating his own principles, or the principles behind the law, as long as he “merely” participates in interpreting that law as generously and diligently as possible on behalf of power?

The law is a means to an end. At the end of the day, the law is broken. Thus was the birth of this nation. Sometimes, the law is observed all the way to the Endsieg. Thus, nations die.

I took the idea behind jury nullification to be that it is OK to let the powerless ignore the law on behalf of the powerless, but that the powerless are unlikely to bend the law on behalf of abusive power.

Bollocks. This is, as bmaz points out, a judge. If you want to talk failure, then start with the voters, and stop at Congress. From Reagan onwards, the history of Congress has been a comprehensive abdication of duties and responsibilities under the Constitution, most notable regarding war powers. Yes, it would be nice to have the judges spearhead the revolution, but that is not quite realistic. However, as long as the sovereign cannot bring himself to end incumbency for every single of the despicable frauds that have governed along the last decades, there is really no case to be made for expecting a judge to step up where The People allow themselves to fail.

Beyond the “assumption” of innocence, the law itself, one hopes, even if evidence suggests otherwise, little relies on “assumption”.

Assumptions can prove fatal to a society quite as much as to an individual.

It is not the decisions of a single judge which is at issue, but, rather, the consequence of a number of decisions which are creating a “pattern” that is very disturbing to those of us who have no reason to “assume” that there is not a culture, or a sub-culture, within the legal profession, intent upon hijacking the rule of law, who, correctly, view the law as POWER, but who are NOT to be trusted because they have no interest in using the law to obtain justice, but merely to gain and maintain control of society itself.

The danger this represents is obvious, and it is ever and always a danger to any and every society.

We claim a rule of law with the substance of reason, not a legal system of assumption and unexamined habit.

The rule of law is under assault, step by step and inch by inch, we are all being dragged toward catastrophe and societal collapse.

And unexamined assumptions are bearing us along, to the distinct advantage of those whose view of the law is counter to yours and to mine.

These are issues of moment and give rise to questions that must be contemplated, else all is damned pretense and the conclusion foregone.

Because the law is central to the viability and sustainability of a society, it may reasonably be considered the primary social “resource” for humanity and the law cannot be treated in cavalier fashion, nor reduced to quaint ritual, without the gravest of consequence.

My question was more general and reading this post just made me ask the question. Actually, the question has, in one form or another, been mulling through my head for some time as I watch the erosion of the rule of law. I often ask myself the question, “How would a strategy be gamed to take down a Democracy?”

My answer, “Destroy the rule of law on laser thin interpretations of the law in the hope of damage to individual rights. Thus, have individuals (moles) work for DOJ appointments and judicial appointments, understanding their end goal is for destroying the rule of law in a way that favors their motive/people/group/politic/or power-grab.

I can see his logic in seeking the connection. Sort like someone saying, I don’t owe you for my water bill because you made a mistake on my trash bill. On the other hand, there seems to be some connection.

DW, I read the ccomment you referred to. Actually, I had already read it, as I customarily read and enjoy all comments with your name on them.

You know I admire your thoughtfulness as well as your unique writing style. And the fact is, I could live in bliss in a world shaped by your thoughts as articulated in your various comments. The world you want is also the world I want.

I guess where we differ is that I lack your patience. That may not be a good thing, but it is the truth. I absolutely hate injusticde, and I absolutely love my country. I’m one of those guys that actually tears up each and every time I sing the national anthem or America the beautiful. I grew up in a time and under circumstances that made it easy to believe in this country in that deeply emotional way.

Now, I look at who is running everything, and I see them as a giant shitstain on my beloved country. It enrages me, to a degree that the Moderators will not permit me to express on these pages, but I think you can make an inference from what they do let me say.

When you counsel endless patience, I admire the gentleness of spirit and spiritual centeredness that allows you to feel that way. But it doesn’t work for me. I want to see basic justice restored in this country in my lifetime. And instead, I see events forming a powerful trend that keeps taking us further and further in the wrong direction. So that I cannot even envision a time after my death when basic justice might be restored.

I spent much time in college studing the politics of pressure groups and minority groups, and the history and philosophy of protest and revolution (in the Nixon years), so I understand the concept that things get worse and worse until they are bad enough to generate a spontaneous uprising by the people, and I understand that that is what you are waitng for. And maybe it will work.

But, it might also be the case that modern methods of manipulting the people are so much more powerful and effective than what was available in earlier times, that maybe that turn never comes without somebody working actively to help it happen. And I guess that is why I am always thinking about ways to hasten the process along.

And, after change is achieved, I’d be delighted to see someone like you running things, because I love your spiritual orientation, and because I have no aspirations to power for myself. I just want to be left alone to enjoy my own space, and be able to know that other regular people have that same freedom and opportunity.

Until coherent progressive narratives, describing with some deliberate clarity the world many of us here imagine, and especially, as I have said, providing a compelling and humanly comprehensible sense of what such a world would “feel” like, are compiled and made widely available, we will not have the people with us, razorbrain.

So far, the “movement” is focused on what it does not like, nor intends to accept or accomodate, that is the beginning. But only the beginning.

Until we can articulate what we DO want, in such fashion as others will readily agree and join with us, we are unprepared for the severity of the inevitable “reaction”.

To speak, now, of violence, is to betray the possibility of what you and I desire and understand that humanity needs, and needs most desperately; which is a humane and rational world wherein human beings and the world itself, with all the life it contains are the cental cherishments of existence.

Those who preemtively, and precipitously, would launch destruction will destroy more than themselves, and they will delay, perhaps fatally, the opportunity of genuine change. Unless one desires martyrhood and wishes others to follow one’s example, violence, now or later, undermines the foundation of what you, and I, and others here, and around the nation AND even around the world would build.

Consider, we love life and the world in which we so fortuitously find ourselves. Whereas “they”, those who want power and control, love themselves and money. What rational and reasonable human being does not, readily, grasp the significance of the difference?

Our ideas are more powerful today, in terms of their resonance, in the hearts and minds of people, than ever before in history. Further, I suggest that all of us who care have been preparing for this time, all of our lives. The people are weary of abuse, but they are confused and frightened as well. Tipped the wrong way, this will encourasge demagogues, who need little encouragement to spread hate and fear. Our actions, and more and different will be required of each and all of us, that is individually and collectively, must not frighten or confuse, for reasons which I trust are obvious to you and require no further elucidation?

Mistakes and errors in this endeavor, will be minimized, only if we are mindful of and present to each unfolding moment, and have no illusions, those “mistakes” will cost both possibilities and lives.

The primary “divide”, in the world, today, is between those who see other people as being, essentially, like themselves, and those who do not.

We have a culture in which the sociopath and even the psychopath may thrive. This is the age of the Divine Right of Money, but it cannot long endure, those in power know this and their behaviors belie their presumed confidence, they have determined, judging from the nature of their behaviors, that this is the “end time”. For their meager philosophy, reflects, not strength but weakness, not capacity but failure, such that their arrogance is now blatant, plain for all to see, and their desperation is showing in their use of secrecy and violence. The only thing, ultimately, that they may unleash is violence, and it will come “home”. They will use it on the people, at the slightest provocation.

They believe that by twisting the rule of law to their own ends they are safe and secure and that their legitimacy is beyond question, but their own personal “ends”, more and more can imagine. The political class, with the exception of the media, already are aware and reacting, they are quitting in droves and posturing and squirming and seeking safety within the essentially anonymous corporate world.

Most humans cannot imagine that tomorrow will not be like today, like yesterday, they cannot imagine massive, dislocating change. As, I am certain, the Russians did not. As the Brits did not and as the Germans did not. As Americans cannot. As the native Americans did not. As the Austrialian native people did not. As the Iraqi people did not.

As you may see, some brought disaster upon themselves, others had it dropped on them. Our “trajectory” is of our society’s own making …

Let us allow our enemies, from within, to weaken themselves further with violence and disdain …

The people are, daily, closer to desperatiion, but also more open, if properly approached, to the visions we must supply them.

And razorbrain, that task is right up your alley.

Apologies to EW, and to everyone else for this excursion into the weeds of confusion.

Maybe overwrought, but garrett over at Daily Kos found this in the judge’s decision, which speaks more specifically to what I meant:

If the government is correct in contending that Ghailani would not be entitled to dismissal of this criminal prosecution on due process grounds even if he was tortured in violation of his constitutional rights, it would be unnecessary for this Court to address the details of Ghailani’s alleged treatment while in CIA custody. (p. 5)

Now, as I always remind you, I’m no attorney, much less a judge, but I think Kaplan is clearly saying that ruling for the government on this point would have the effect of making it “unnecessary for this Court to address the details of Ghailani’s alleged treatment while in CIA custody.” I don’t think, given what Kaplan wrote, that “silenced” is so far off. As for whether it’s right or not, I bend towards b2020 @63, though I’m not unmindful of constraints. But someday Prometheus must be unbound.

Phantasm

…. But thou, who art the God and Lord: O, thou,
Who fillest with thy soul this world of woe,
To whom all things of Earth and Heaven do bow
In fear and worship: all-prevailing foe!
I curse thee! let a sufferer’s curse
Clasp thee, his torturer, like remorse;
Till thine Infinity shall be
A robe of envenomed agony;
And thine Omnipotence a crown of pain,
To cling like burning gold round thy dissolving brain….

Prometheus.
Were these my words, O Parent?

The Earth.
They were thine.

Prometheus.
It doth repent me: words are quick and vain;
Grief for awhile is blind, and so was mine.
I wish no living thing to suffer pain.

I think Shelley was thinking about revenge upon Milton’s God. And how the imprisoned repent more fully, because they know pain.

Well, what you relate from Garrett does not sound right. There is a fundamental difference between exclusion of tainted evidence and inherent dismissal of the charges. So the statement that if dismissal were not possible there would be no reason for the court to address the subject is just wrong; as the court would need to consider the torture in relation to the specific evidence. The way you get to dismissal on this type of argument is to demonstrate that the government’s evidence set cannot meet the essential elements of the crime charged without relying on tainted evidence; otherwise, they get to proceed on the merits. Like it or not, that has long been the framework.

I understand that if you commit a crime, and let’s say there’s photo evidence, fingerprints, DNA, etc., and the state has plenty of evidence, and then you are jailed without charges for years and tortured, the state can come back and try you on the original evidence, without having to use whatever “evidence” they gathered under the torture. Am I right in assuming this?

However, it seems to my poor non-legal brain that this is a violation of due process at least as grave as not reading someone their Miranda rights. Where I am probably confused is on the law of evidence. But it appears to me that a court that has evidence of crimes before it may have the power to order an investigation. How can this not be? If not, then who has this power?

If someone were to permit perjury before the court, they would be arrested. If evidence were submitted in a government case of government malfeasance, that’s just ignored? I suppose so. But something seems awfully wrong here.

If there is sufficient untainted evidence, it does not really matter when it was obtained; so long as it is clean and can satisfy the requisite elements of the crime charged, the prosecution can maintain. Only where either all evidence, or enough that at least one or more elements of the applicable crime cannot be established, is excluded as a result of the illegal and/or unconstitutional taint is there a dismissal. In a way, I can live with this; the problems arise when courts contort and contrive to deem evidence sufficiently clean (and trust me, they do just that). At any rate, that is pretty much the standard. If there is clear criminal conduct, obviously it can be reported to the DOJ; preferably by an official referral by the court, although that is rare.

Until coherent progressive narratives, describing with some deliberate clarity the world many of us here imagine, and especially, as I have said, providing a compelling and humanly comprehensible sense of what such a world would “feel” like, are compiled and made widely available, we will not have the people with us, razorbrain.

So far, the “movement” is focused on what it does not like, nor intends to accept or accomodate, that is the beginning. But only the beginning.

Until we can articulate what we DO want, in such fashion as others will readily agree and join with us, we are unprepared for the severity of the inevitable “reaction”.

I’m working on it, I’m working on it! Well said, DW, that’s exactly how I feel.

That “framework” did not begin with torture as the “point” in question, did it, bmaz?

At what point might a judge wonder whether the “detainee”, brought before him or her, would be “safe” and able to participate in their own defense if they remain in the hands of those whom, they alledge, have tortured them?

At what point does a judge, any judge, unless they are hidden away from the world and hear nothing of it, not begin to wonder, when clear evidence of torture is widely reported, suggesting that case of the person before them is not an abberation, but official policy, whether the larger crime might not have been committed by the state itself?

Does a judge, any judge, not have some obligation, if not to the Constitution, then to the legal community itself, and its collective notion as to what the rule of law actually means?

If a judge cannot or will not do this, then who may?

And when? How long must the assault on the rule of law, if any judges can imagine such a thing, go on?

How may the law examine itself?

No one outside of the legal community may, apparently, do that.

Presumably, Congress or the President and his miniions might do so, but that is unlikely given that both are complicit …

So, then, who is left with the “standing” to raise the “question” of torture before the legal community?

And who, within the legal community, would respect what anyone from the “outside” might say?

Sorry to load you with questions, bmaz, but your wisdom and insight is a primary legal resource for this community.

Clarification: “endless patience” stemmed from your “as long as it takes.”

Clarification: I’m not advocating violence; I believe you are 100% correct about what the response to that would be.

The thrid pary idea I am floating (and it’s just a float at this point) seems to me to be an ideal vehicle for furthering the educational process you speak of. Even if it doesn’t win, it gets the right message out. Not a socialist message, to be sure, but one about clean, decent, honest, competent governing, along consensus lines, which is a big improvement and therefore a big step toward the more loving world we both desire.

I think it’s worthy of thought and debate, albeit Jjane seems to be flatly against it.

In any event, thank you for sharing the precious content of your mind with me.

From my perspective, I see no reason not to discuss and debate, for of a certainty, such changes as we would hope to see are anethema to the current political parties, and frankly, neither, at this point, deserve anything but disdain. They have both betrayed the people and the fundamental (and necessary) principles of this nation, to the continuing benefit of the “chosen” few.

Trial court judges are bound by legal precedent and the framework existing. Can they go outside of that? Yes, but they should not be expected to do so, nor should they be encouraged to do so. This is not their burden; it is that of the politicians and Supreme Court. Personally, I feel it inappropriate to hang a cross around a judge whose burden it is not to bear.

If Congress, The President and SCOTUS are all aligned, and that is unclear but more than possible, perhaps even likely, then it must, for the sake of the law itself, fall to someone else to take the first steps.

What other remedy, if the possiblity I propose is correct, is there?

I ask not to belabor, but because, without a satisfactory answer, we are likely, without a satisfactory solution.

I’m a lawyer, too, so I appreciate and agree with you on most of your points re strict legal reasoning.

Where we diverge is that I believe every trial judge has an overriding, albeit perhaps ill-defined, duty and obligation to insure that whhat happens in his courtroom does not offend basic principles and concepts of justice itself. There is a tension there, admittedly, but that does not give license to completely ignore the “justice” concept.

Here’s what I am sure of these days. The dialectic is at work in our philosophies about violence, about generosity and sharing, about capitalism, about democracy. In my humble opinion the left side or a polar position has been sufficiently silence through the use of a Public Relations campaign aimed at the destruction of the polar argument. The strategy used was not a spiral logic discussion, but instead a power and control move to silence the polar position. That is, that liberals were called weak, lazy, unprincipled, unwilling to stand up for what they believe in because they won’t kill for it. And it has worked to silence us. Unfortunately Obama is a co-dependent who somewhere learned to honor power and control by giving in to it. And this is what he has done. This is a sickness, it is a pathological response to a perceived “bigger power”.

The solution is to continue to create a strong left wing opposition, a strong polar argument. An argument that will not back down or be silenced in response to the use of power and control. We are at a tipping point where free speech matters a great deal. We must continue to push on Obama hard…and we must continue to argue the polar position to the underlying right wing philosophies which are neither “right” or “moral”. Finally we must all become aware of how we as individuals react to power and control, and we should choose leaders who work the dialectic. Obama “fakes” the dialectic. He “appears” to be considering both sides and finding validity in each side. But this is not what he does. He is ruling by consensus of those in power. This is not what we need.

Very insightful comments, IMO. Part of the problem is that you are entirely correct that the botton line position of the right on every issue is that they are willing to kill the opposition to get their way.

By contrast, here on the premier leftist blog in the universe, we are not even permitted to wish that a meteor might fall on one of our enemies.

Better to die with noble spiritual purity, than to win the war by hurting anyone on the other side? Seems like a fool’s argument to me.

If we adopt, as legitimate, the notion that gratuitous violence, distinctly separate from self-defense, is justified to make a point or to have our way, then how are we, fundamentally, different from what we deplore and struggle against?

One notes that the meteor still falls in your comment.

My concern with violent imagery, razorbrain, is that, like violence itself, such imagery often begets more of the same.

While a momentary “release” of emotion may be satisfying, I doubt you would wish such imagery to be associated with you, as a “trademark” or personal “brand” of sorts?

Words are our best weapons, razorbrain, and, you, as I regard you as a friend, I feel empowered to say, are most well-armed. You’ve no need of insult or violence, as you are more powerful, in the ways that matter, with your language and your wisdom, than most all with whom you contend.

I’m not advocating violence, just making the common sense observation (since I am best qualified as an objective and discerning observer) that the other side embraces violence and we do not, and that puts us at a distinct disadvantage in the real world.

Just as I would observe that even if the people get aware enough to rise up, they will just be slaughtered if the PTB use violence and the people do not. Just a comment based on my understanding of history and human nature, I’m not advocating going down that path, as I am certain all on our side would be slaughtered. I just have an aversion to denial and self-delusion. The facts are the facts, even if we hate them. These days, I am mostly resigning myself to the strong possibility that we have passed the point of no return, and our future is fascism.

The people of this nation, by a measurable majority do not support the two acknowledged wars, and more people are reacting negatively to police violence domestically, than has been the case in decades.

It is the violence, even more than the greed, which will, ultimately, turn the people away from those who embrace either form of destruction.

Who knows, razorbrain, Lennon’s “Give Peace a Chance” may well come back into vogue again … even my youngest, at nine years of age loves that song. (The Beatles and Lennon, in particular are her favorite musicians.)

I’m not advocating violence, just making the common sense observation (since I am best qualified as an objective and discerning observer) that the other side embraces violence and we do not, and that puts us at a distinct disadvantage in the real world.

One might as well say that the other side lies, cheats, steals, murders, and commits despicable acts, so unless we lie, cheat, steal, murder and commit despicable acts, we’ll be at a disadvantage. This is Cheney logic.

Actually, the rest of the world expects superpowers to lie, cheat, steal, murder, and commit despicable acts– so if we *don’t*, we have a truer advantage because the rest of the world can see how powerful we are *without* committing those abusive acts. You’re barking up the wrong tree.

Now, razorbrain, you well know that I have engaged in defending myself, just as you have. In fact, I know that you have stepped “in” when it was the appropriate thing to do, to protect others. That is reasonable, and often necessary. But we did not initiate the violence, we merely ended it.

However, if the government (for that IS the “they” of whom you are speaking, is it not?) attacks, with the full fury of their force, there is little one can do to defend oneself (or anyone else).

That, from my observation, is a fact.

You may dispute that assertion , if you wish, but I suspect you would agree.

You say I have merely flowers to wave at a tank.

What would you wave at a tank?

(As an aside, what is the most memorable moment of the attack on Tianamen Square? You may chuckle and suggest that nothing was accomplished. I would suggest that that image is seared into the consciousness of all who saw it, not unlike the little girl in Vietnam, running down the road while napalm burned into her naked body, that image, razorbrain helped end that war, and again, that image lives on …)

Wouldn’t it be better for the people to come to such an understanding that whenever any of us is attacked others rise up, not to fight, but to witness?

What might induce the crew in that tank to recognize themselves on the other end of their guns?

If resorting to violence is regarded as courageous, then how is that any different from all those who carry concealed weapons in this country, legally or not? They do not carry guns because they are brave, but because they are afraid.

You are a complex being, razorbrain, comprised of many things, but my measure of you is that fear is not one of those things.

I do understand how you feel, but selfishly, I should not like to lose you to violence, whatever good you imagine it might do.

Some of us may well die in the struggle ahead, but let it not be at our initiative or because we are afraid.

Life is too precious to be squandered for nothing. For no purpose.

You are not afraid to live, and you know that, someday, you will die. As will we all.

Between now and then, we have too much to do to waste or sacrifice our lives without purpose and consideration.

As I have said, I have waited for more than forty years for the national conversation to reach this point.

Let us allow those who would destroy others, to destroy themselves.

You may have noticed that “they” are diligently working at precisely that, twenty-four seven even as they intone “everything changed after nine-eleven.”

You are a beautiful man, DW, and you have a way of making me want to agree with you even when my personal experiences in life push me in a different direction.

oF course, I agree with each of the individual points you make. I just can’t manage to arrange them all in such a way as to believe in a happy ending. ;-) I’m pretty discouraged right now. With too many things.

Oh, come on. This is tripe. You obviously don’t know much about the martial arts. Or bull fighting.

BTW, I grew up as a twerp. The proverbial 99-pound weakling, due to health problems. I quickly learned NOT to meet force with force, because then I almost always was at a disadvantage. Not wishing to get creamed, I resorted to other tactics, mostly amounting to deflection, redirection, and misdirection. But not violence, except with my younger brother, who was about my size. When I resorted to violence with him, it always ended badly. This does not mean that I never got involved in fights, but I learned not to get into fights that I was likely to lose.

Also, I became an admirer of Ghandi, Dr. Martin Luther King, Jr., Jesus, Desmond Tutu, and Nelson Mandela. They did not earn their reputations by resorting to violence. It is true that 3 of that 5 died violent deaths, but today we celebrate them, and not the perpetrators of the violence that killed them.

So I learned different lessons in life than you did.

There is a place for violence, but not much of one. We do better when we learn how to avoid it.

Actually, I studied martial arts (shotokan) intensively for three years after taking a savage unprovoked beating from a local gang in Brooklyn. I learned in the dojo never to use force unless it was made absolutely necessary by the actions of a determined aggressor. I’ve never had to put my hands on anyone since those days, deflection, redirection, misdirection, bluff, I’ve used them all, and happy with the results.

OTOH, I’ve been chased twice by maniacs with guns, who had the clear intent to kill me. Escaped both times by sheer blind dumb luck, could just as easily have gone the other way. So now, when I am out in my car, I am armed, as the law allows. And having experienced some of the consequneces of being in the control of animals, I have no qualms about preventing those consequences with force if really necessary.

There is no perfect strategy for dealing with determined aggressors. Each choice carries significant negative consequences with it. To pretend otherwise is just being foolish.

You prefer a violent death today so we can celebrate you in ten years? I would never make that choice.

n any event, personal experiences are a poor guide to understanding institutional dynamics. An entrenched power regime will always resort to force if it feels its hold on power is challenged. That’s history. At Tiennamen Sq, they killed many, and the fact that one tank, manned by solders who characterized themselves as a People’s Army, was stopped does not change the fact the the regime is still in place. Here, with an army dominated by Christian Dominiinists, they would run right over you and laugh, believing they were doing Gods work. They would dehumanize people like us as unAmerican radicals, and seek to wipe us out. I don’t claim to have the perfect response to that dilemma, but I don’t think self-delusion about that inconvenient truth is helpful.